Police Trickery Prompts Concern From State's High Court

, New York Law Journal

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Judges of the New York Court of Appeals hear arguments about the potential of police deception to elicit a false confession in the cases of 'People v. Thomas' and 'People v. Aveni' in Albany on Tuesday.
Judges of the New York Court of Appeals hear arguments about the potential of police deception to elicit a false confession in the cases of 'People v. Thomas' and 'People v. Aveni' in Albany on Tuesday.

Defense attorney Jerome Frost was pressed on what exactly he wanted from the court, not just in this case, where he obviously wants a reversal, but in a broader sense. He was asked several times to define a proposed rule.

Frost said Thomas was subjected to a "cruel hoax," namely that his child could survive if only he "bought into" the detective's theory.

"You don't threaten a person's vital interests, such as the freedom of the spouse, taking away his children," he said.

The prosecutor, Assistant Rensselaer County District Attorney Kelly Egan, faced by far the most aggressive questioning from the court from the moment she walked to the podium. She didn't get beyond "may it please the court" before questions came fast and furious from every judge on the bench.

"Counselor, what about the officer saying 67 times that we know what happened was an accident and 140 some odd times that he wouldn't be arrested. How do you square that with a voluntary statement on his part?" Lippman asked.

Egan urged the court to look at the totality of the circumstances.

"They were certainly applying pressure to him and they wanted him to speak with…," Egan said before the chief judge cut her off.

"Well, what is acceptable pressure?" Lippman asked. "What is okay and what is not okay in terms of deception?"

Egan said deception is acceptable as long as it doesn't override a suspect's free choice or create a substantial risk of a false confession. She disputed that police threatened to arrest Thomas' wife.

"They said they would speak to his wife and scoop her up," Egan said. "They did not say they were going to arrest her."

What's being said

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    What a terrible situation. Tell us what happened so your child can be saved ? That crosses the line. A police force from another era engaged in such tactics; they were called "Gestapo".

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